Delhi High Court
Iffco Tokio General Insurance Co ... vs Suresh Chand & Ors on 2 February, 2016
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 02nd February, 2016
+ MAC.APP. 638/2012
IFFCO TOKIO GENERAL INSURANCE CO LTD
..... Appellant
Through: Ms. Suman Bagga and Mr.
Siddhant Jaiswal, Advs.
versus
SURESH CHAND & ORS ..... Respondents
Through: Mr. O. P. Mannie, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Suresh Chand son of Tuhi Ram suffered injuries in a motor
vehicular accident on 27.07.2008 at about 03:30 PM in the area of
Income Tax Colony, Outer Ring road red light, Pitampura, Delhi,
involving a tempo bearing registration no.DL-1LJ-1733. He presented a
claim petition under Sections 166 and 140 of the Motor Vehicles Act,
1988 (the MV Act) before the motor accident claims tribunal (the
tribunal) on 02.09.2008 seeking compensation for the injuries suffered,
impleading Mohan Sharma (the driver of the offending vehicle) and
Hari Ram (the owner of the offending vehicle), as party respondents. In
the claim petition, the appellant/insurance company was also impleaded
as third respondent, it admittedly having issued an insurance policy
covering third party risk in respect of the offending vehicle for the
period in question.
2. The tribunal concluded the inquiry and reserved its order on
15.10.2011 and eventually passed the award on 20.03.2012, granting
compensation of `18,05,141/-, as per the following break up:-
(i) Compensation for pain & sufferings. : 1,00,000/-
(ii) Compensation for expenses incurred on medical : 4,52,617/-
treatment, special diet, conveyance & attendant
charges for future.
(iii) Compensation on account of loss of Income & : 8,32,524/-
future loss of earning capacity due to permanent
disability.
(iv) Compensation on account of loss of enjoyment : 2,00,000/-
of amenities of life on account of disability.
(v) Compensation on account of inconveniences, : 1,00,000
hardship, discomfort, disappointment, frustration
and mental stress in life.
(vi) Compensation on account of recurring : 1,20,000/-
inevitable expenses.
Total : 18,05,141/-
3. The insurance company feeling aggrieved with computation of
the compensation brought appeal at hand under Section 173 of MV Act
and sought stay against the execution. By order dated 31.05.2012, it
was directed to deposit the awarded amount with up-to-date interest in
UCO Bank, Delhi High Court Branch in the name of the first respondent
(claimant) and upon such deposit 60% of the awarded amount was
ordered to be released in favour of the claimant. It is stated that no
amount was released in terms of the said direction. Upon notice being
issued, it was reported on 03.04.2013 that the claimant had already died.
This gave rise to the question of bringing his legal representatives on
record. On 18.07.2013, a counsel appeared representing the interest of
the claimant and time was granted for appropriate application to be
moved for substitution of the legal representatives. On 24.07.2013,
another advocate appeared on behalf of proposed legal representatives to
press the application under Order 22 Rule-4 & 9 of Code of Civil
Procedure, 1908 (CPC) having been preferred (vide CM Application
no.11211/2013). In due course, upon no objection, the said application
was allowed and the legal representatives of the claimants were
substituted in his place by order dated 24.07.2013. It may be mentioned
here that the legal representatives, thus substituted, include Smt. Guddi
and Smt. Laxmi, wife and mother of the deceased claimant.
4. When this appeal was taken up for hearing, it was noted that
neither the pleadings nor any document on record reveals the date of the
death of the claimant. On this issue coming up, the learned counsel for
appellant company submitted a photocopy of the death certificate issued
by Senior Medical Officer of Public Health Centre, Hindon City
(Karauli) dated 08.10.2011 certifying that the claimant had died on
04.10.2011. The learned counsel for the claimants submitted that the
document thus placed on record by the counsel for the appellant is
genuine and that the death had actually occurred on 04.10.2011.
5. As noted earlier, the claim petition had been filed by the injured
person on 02.09.2008 and it was decided by judgment dated 20.03.2012.
The claimant, therefore, had died even before his claim petition could be
adjudicated upon. Though the learned counsel representing the legal
representatives of the deceased claimant tried to argue that the death had
occurred after the judgment had been reserved, his submission to this
effect is factually wrong as copy of judgment indicates that the tribunal
had reserved its order on 15.10.2011.
6. This gives rise to the serious question of propriety of the conduct
of the counsel who was assisting the tribunal at the stage of inquiry into
the claim petition of Suresh Chand for compensation for the injuries
suffered by him. Since the claimant had died, it was the bounden duty
of the learned counsel to bring this fact to the notice of the tribunal. The
legal representatives were required to be substituted even at that stage.
No explanation worth the same has been given for this omission and
default. Technically speaking, non-substitution of the legal
representative would vitiate the further proceedings and the award
passed by the tribunal, rendering it non-est.
7. Noticeably, copy of the death certificate presented by the counsel
for appellant indicates the death purported to have occurred on account
of "septicaemia as a result of paraplegia with bed sore" resulting from
fracture of D2 vertebra suffered in road traffic accident on 27.07.2008.
It is submitted by the learned counsel for the legal representatives of the
claimant that death would relate back to the injuries suffered in the
accident. If this were the position, as submitted by the learned counsel
for the legal representatives, the death would have to be treated as one
arising out of the motor vehicular accident. But then, it is again a lapse
on the part of the learned counsel representing the claimants (now legal
representatives) that he did not take effective and timely steps to seek
appropriate amendment.
8. In view of above facts and circumstances, the judgment being
non-est, on account of death of the claimant even during the inquiry, the
matter is remitted to the tribunal for appropriate proceedings in
accordance with law. The legal representatives of the deceased claimant
would be entitled to move appropriate application for incorporating
amendment bringing on record subsequent events including about the
death of the deceased claimant. Given the time that has already lapsed,
they shall be obliged to do so on the date of first appearance before the
tribunal hereby fixed.
9. The matter shall come up before the concerned tribunal for further
proceedings in accordance with law on 31.03.2016.
10. The amount deposited by the appellant/insurance company shall
be presently refunded to it along with statutory deposit, if made.
11. The appeal stands disposed of with above directions.
R.K. GAUBA
(JUDGE)
FEBRUARY 02, 2016/ssc
